Jim Haynes’ real record

Four former top Justice Department officials, including former deputy Attorney General Larry Thompson, have written a letter in support of Jim Haynes’ nomination to the Fourth Circuit. Thompson’s co-authors are James Comey, Patrick Philbin, and Jack Goldsmith.

The letter demonstrates the unfairness of criticism over Haynes’ role in the treatment of terrorist detainees. Here are the key paragraphs:

. . .[W]e would like to emphasize two matters that have long been documented in the public record and were examined by those of us involved when the matters were made public, but that seem to have been overlooked.

First, when aggressive interrogation techniques were first requested by the Joint Task Force in Guantanamo Bay in 2002, Jim actually recommended that the Secretary of Defense restrict authorized techniques to a more limited set than those that had been approved by military lawyers below him. Jim reasoned that “[o]ur armed forces are trained to a standard of interrogations that reflects a tradition of restraint.” When even those techniques approved in December 2002 raised concerns in some quarters within the military, Jim brought those concerns to the Secretary of Defense, the policies were rescinded in January 2003, and Jim organized a working group to address the development of new interrogation policies.

Second, Jim has been wrongly criticized based on the fact that he directed the working group convened in 2003 to accept a legal analysis presented by the Office of Legal Counsel of the Department of Justice concerning the application of certain laws and treaties. . .It is important to understand that the opinions of the Office of Legal Counsel are binding on the Executive Branch. The Attorney General has delegated his authority to interpret the law for the Executive Branch to the Office of Legal Counsel, and thus other departments of the Executive Branch — including DOD — are bound by OLC’s legal opinions. Jim Haynes was not taking any untoward or cavalier action by deciding, as chief legal officer of his department, that his department would abide by an OLC opinion. To the contrary, he was following the law.

More important, when the working group ultimately approved 35 interrogation techniques, Jim’s role was once again to apply sound judgment and a cautious restraint by recommending to the Secretary of Defense that only 24 of those techniques be approved, at least 17 of which came directly from the Army Field Manual. And. . .even after the withdrawal of the OLC memorandum concerning the torture statute, all 24 of those techniques were deemed lawful by the Department of Justice.

Let’s hope that Republican members of the gang of 14, such as Senators Warner, Collins, and Snowe, are willing to look at this record in deciding whether “extraordinary circumstances” exist that justify filibustering a nominee who has served this country so well during a time of unprecedented challenges.